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Defending the Fourth Estate

Jay Bender has a sense of duty to protect the First Amendment

Published in 2017 South Carolina Super Lawyers — May 2017 by Andrew Brandt

One morning 46 years ago, Jay Bender awoke with an epiphany: He didn’t want to work in advertising anymore. “I took an inventory of my skills, and figured I could think, write and talk,” he says. “It struck me that lawyers thought, wrote and talked. I said I’d go to law school and see what happens.”

In 1980, 12 years after he first took a journalism class at University of South Carolina from his mentor, Reid Hood Montgomery, Bender began representing the South Carolina Press Association at his former professor’s request. He’s been representing journalists ever since, and even helped rewrite the state open-records law.

Bender’s duties include assisting media organizations with access to records, meetings and court proceedings, as “fewer and fewer battles [are] being fought by news organizations alone,” he says.

“I was in court in Charleston in connection with the Dylann Roof prosecution to challenge the judge’s decision to close the second competency hearing,” he says. “I was representing two newspapers, two television stations, the Associated Press and NPR. In years gone by, it might just have been one newspaper stepping up to fight that battle. It takes a significant commitment of resources to fight these battles, and that’s the economics of the news business these days.”

It’s important that the battles are still being fought, Bender says. Otherwise, “We’ll get to the point where governmental activity will be conducted in secret, and it’ll become routine and accepted. In a democracy, I don’t believe that’s appropriate.”

The biggest change Bender has seen in his career has been the industry’s economics. “The internet has changed how news is disseminated, and how news organizations make money,” he says. Media are bringing in less revenue, which in turn has cut staff sizes. As part of his representation, Bender takes on tasks like reviewing articles before they get published. “Very often, I will be a last line of defense where a copy editor might have been doing that 30 years ago.”

Bender has been a professor at USC’s journalism and law schools, with a similar philsophy for both: “In journalism school, I tried to teach them how to stay out of trouble. In law school, I tried to teach them how to cause it.”

Bender notes the recent Post & Courier report on inappropriate spending by the board of trustees at South Carolina’s medical university, which resulted in the school refusing to cooperate with the paper on future stories. “There are a lot of people who don’t like when news organizations expose the warts on them or on our society,” he says. “They would just as soon there not be any news at all.”

And yet, that is the reason Bender still wakes up every day satisfied with his career decision. “If reporting goes away—broadcast or print—democracy goes away.”

Fighting for 42,000

But it’s not news all the time for Bender. From 1975 to 2006, Bender represented the Catawba Indian Nation, which signed treaties with the king of England in 1760 and 1763 that allowed them 144,000 acres. South Carolina was bound by those treaties.

“One of the first acts passed by the first Congress was to reserve the exclusive power to deal with Indian tribes,” says Bender. “Then, in 1840, the state stole the land, and didn’t get the approval of Congress in time.”

Bender and Jean Toal acted as local counsels for the tribe, which brought a land claim against the state that eventually settled in 1993. “The case combined history and litigation strategy, and issues going back to before the foundation of the republic,” he says. “I think we ended up with 42,000 defendants.”

In his years representing them, Bender adds, “The tribe went from being, really, a nonprofit corporation to a real government with governmental authority and power.”

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